COMMONWEALTH v. MILES

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Indictment found
and returned in the Superior Court Department on December 7,
1994.

The case was tried before Elizabeth
B. Donovan, J.

James M. Doyle for
the defendant.

Paul B. Linn,
Assistant District Attorney, for the Commonwealth.

WARNER, C.J.

A Superior Court jury
found the defendant guilty of second degree murder. On appeal,
the defendant claims (1) the evidence was insufficient to warrant
a finding that he acted with malice because he acted in
self-defense; (2) the prosecutor’s closing argument necessitated
a mistrial; (3) the judge erroneously admitted evidence of a
prior bad act; and (4) the judge’s supplemental instruction to
the jury was erroneous.

The jury could have found
the following facts beyond a reasonable doubt. In the summer of
1994, the defendant, Otis Miles, informed a cousin of Tony Evans,
the victim, that Evans had stolen the defendant’s moped. The
defendant indicated to Evans’s cousin that he was upset by this
and was going to kill Evans. When Evans’s cousin suggested that
the defendant simply injure Evans instead, the defendant replied,
"No, he fucked up. . . . I shot my own brother, so
what the hell [do] I care about [Evans]." Subsequently,
Evans returned the moped to his cousin, who then returned it to
the defendant.

On the evening of October
7, 1994, Evans encountered the defendant sitting on the front
steps of the apartment building where the defendant’s girlfriend
lived. The two men soon began to exchange words. The defendant
then went inside the apartment building, but Evans followed and a
fight ensued between the two until friends broke it up. Evans
yelled, "Go get your heat," to which the defendant
responded, "Motherfucker, stay right here ’til I get
back." The defendant subsequently went upstairs to the
second floor and Evans left the building.

Several minutes later,
Evans returned to the front of the apartment building with two
other men. The defendant then emerged from the apartment building
and confronted Evans, who moved his empty hands away from his
body and threw them into the air. Nonetheless, the defendant
pulled out his gun and fatally shot Evans in the stomach. A
witness testified that after the shooting, the defendant said to
Evans, "I told you not to fuck with me."

1. Motions for required
finding of not guilty. The defendant moved for a required
finding of not guilty at the close of the Commonwealth’s case and
at the close of all the evidence. These motions were denied. The
defendant argues that because he acted in self-defense, the
evidence was insufficient to warrant a finding that he acted with
malice.

"In order to prove
murder, it is the Commonwealth’s burden to prove beyond a
reasonable doubt that the defendant acted with malice, and that
he acted without reasonable provocation, or in the absence of
sudden heat of blood or passion . . . ." Commonwealth
v. McLeod, 394 Mass. 727, 738, cert. denied, 474 U.S. 919
(1985). To prove malice, the Commonwealth must establish, beyond
a reasonable doubt, that the defendant, without justification or
excuse "(1) . . . intended to kill the victim .
. . , or (2) . . . intended to do the victim grievous bodily harm
. . . , or (3) in the circumstances known to the defendant, a
reasonably prudent person would have known that, according to
common experience, there was a plain and strong likelihood that
death would follow the contemplated act . . . ." Commonwealth
v. Sneed, 413 Mass. 387, 388 n.1 (1992). Commonwealth
v. Vizcarrondo, 427 Mass. 392, 394-395 n.3 (1998).
"[M]alice may be inferred from the intentional use of a
deadly weapon." Commonwealth v. Young, 35
Mass. App. Ct. 427, 433 (1993).

Viewing the evidence in
the light most favorable to the Commonwealth, see Commonwealth
v. Latimore, 378 Mass. 671, 676-677 (1979); Commonwealth
v. Andrews, 427 Mass. 434, 440 (1998), a rational jury
could have found the required elements of second degree murder
beyond a reasonable doubt. The defendant intentionally used a
deadly weapon and shot Evans without legal justification. After
the initial altercation with Evans, the defendant went into the
apartment building, and emerged several minutes later, armed with
a deadly weapon. The defendant then purposefully approached
Evans, whose empty hands were raised in the air, and who did not
appear to be armed. The defendant next shot Evans at close range
and then stated, "I told you not to fuck with me."
Accordingly, it can be inferred that the defendant intended to
kill Evans, and thus acted with malice. See Commonwealth
v. Guerriero, 14 Mass. App. Ct. 1012, 1012 (1982) (malice
inferred when defendant walked away from the victim after an
argument, then reached for a concealed gun, turned and moved
toward the victim and shot him at close range); Commonwealth
v. Colantonio, 31 Mass. App. Ct. 299, 312 (1991) (malice
inferred when defendant took a bat from a car, walked over to the
victim, and forcefully swung it at him).

Where the evidence
warrants an instruction on self-defense, the Commonwealth must
disprove that theory beyond a reasonable doubt. See Commonwealth
v. Johnson, 426 Mass. 617, 620 (1998); Commonwealth
v. Souza, 428 Mass. 478 (1998). "A defendant is
entitled to an instruction relating to the law of self-defense
only if there is ‘evidence warranting at least a reasonable doubt
that the defendant: (1) had a reasonable ground to believe and
actually did believe that he was in imminent danger of death or
serious bodily harm, from which he could save himself only by
using deadly force, (2) had availed himself of all proper means
to avoid physical combat before resorting to the use of deadly
force, and (3) used no more force than was reasonably necessary
in all the circumstances of the case.’" Commonwealth
v. Pichardo, 45 Mass. App. Ct. 296, 301-302 (1998),
quoting from Commonwealth v. Harrington, 379 Mass.
446, 450 (1980).

Here, the evidence which
we have rehearsed also supports a finding that the defendant did
not act in self-defense. Even if the jury had believed that the
defendant had been afraid of Evans in the past, there was no
evidence that at the time of the incident, the defendant had a
reasonable basis to fear for his life. Evans, who gave no
indication that he was armed, had his hands raised in the air at
the time of the shooting. Thus, contrary to the defendant’s
contention, this was not a circumstance of excessive force in
self-defense. See Commonwealth v. Pichardo, 45
Mass. App. Ct. at 302 (no excessive force in defense of another
instruction required where the victim’s hands were in the air, no
weapon was visible and the victim had begun to walk away from the
defendant’s friend just before the defendant shot him). Contrast Commonwealth
v. Boucher, 403 Mass. 659, 664 (1989) (self-defense charge
required where victim attacked the defendant, delivering a karate
kick to his head). Therefore, the motions for a required finding
of not guilty were properly denied.

2. The prosecutor’s
closing argument. The defendant contends that during closing
argument the prosecutor misstated the evidence, improperly put
the defendant’s character at issue, improperly remarked on the
defendant’s constitutional right to travel, and shifted the
self-defense burden of proof.

a. Misstatement of the
evidence. The defendant asserts that three remarks made by
the prosecutor in her closing argument were misstatements of the
evidence. A prosecutor is permitted to argue the evidence and the
reasonable inferences that may be drawn from that evidence. Commonwealth
v. Kozec, 399 Mass. 514, 516 (1987). Commonwealth
v. Murchison, 418 Mass. 58, 59 (1994). See Commonwealth
v. Ashley, 427 Mass. 620, 627 (1998). However, a
prosecutor may not misstate the evidence. Commonwealth v. Kozec,supra at 516. Commonwealth v. Azar, 32 Mass.
App. Ct. 290, 307 (1992).

Here, the prosecutor
quoted the defendant as saying, "[w]ait here while I go get
my piece." A witness, Henrietta Hicks, who was a cousin of
the victim, actually testified that she heard Evans yell,
"Go get your heat," to which a reply was heard,
"Stay right here ’til I get back." Although a
reasonable inference may be drawn that the defendant went inside
the apartment to get his gun, the prosecutor did not ask the jury
to make that inference. Rather, the prosecutor erroneously
misquoted the evidence.

Additionally, the
prosecutor quoted the defendant as saying, "I’m going to go
out looking for [Evans] with a gun" and "[i]f he
doesn’t return the moped, then I will look for him, I will find
him, and I will kill him."[1] While it can
reasonably be inferred from the witness’s testimony that the
defendant intended to search for Evans in order to kill him, the
defendant never actually said he was going to look for Evans with
a gun. Therefore, the prosecutor again misstated the evidence.

Lastly, the prosecutor
referred to one of the defendant’s associates as a gang member.
There is little evidence of this fact other than the defendant’s
testimony that he saw his friend socializing daily in an area,
where his friend did not live, known to be gang territory. Thus,
the prosecutor’s remark was improper as it was unsupported by the
evidence.

Because the defendant
properly objected to the statement regarding the defendant’s
remark about going to get his gun, "[t]he standard for
determining whether a conviction must be reversed is whether the
improper statements made by the prosecutor ‘constituted
prejudicial error.’" Commonwealth v. Santiago,
425 Mass. 491, 500 (1997), quoting from Commonwealth v. Daggett,
416 Mass. 347, 352 n.5 (1993).

In assessing whether
reversal is required, the "cumulative effect of all the
errors in the context of the entire argument and the case as a
whole is considered . . . ." Commonwealth v. Santiago,supra at 500. Specifically, we must review the following
factors: "whether defense counsel seasonably objected to the
arguments at trial . . . ; whether the judge’s instructions
mitigated the error . . . ; whether the errors in the arguments
went to the heart of the issues at trial or concerned collateral
matters . . . ; whether the jury would be able to sort out the
excessive claims made by the prosecutor . . . ; and
whether the Commonwealth’s case was so overwhelming that the
errors did not prejudice the defendant." Ibid., and
cases cited.

Here, although the comment
may constitute error, no prejudicial harm resulted for the
following reasons. First, the prosecutor’s erroneous statement
was insignificant in the context of the entire argument. Second,
the judge’s instructions clearly and forcefully stated that the
jury should not consider the closing arguments as evidence and if
counsel had misstated any evidence, it was their memory of the
evidence that would control. See Commonwealth v. Kozec,
399 Mass. at 518 (impact of closing argument may be mitigated by
a judge’s forceful instructions to the jury that the argument
should be disregarded). Lastly, the Commonwealth’s case was
strong given the testimony of three eyewitnesses that the
defendant shot Evans at close range as he had his empty hands
raised in the air.

Because the defendant
failed to object to the statements pertaining to his threats
about the stolen moped and his associate’s status as a gang
member, the substantial risk of a miscarriage of justice standard
applies to those two comments. Id. at 518 n.8. For the
reasons stated above, these comments do not rise to the level of
a substantial risk of a miscarriage of justice. Thus, the
prosecutor’s erroneous statements during closing argument do not
require reversal.

b. Comment on character.
The defendant also argues that, before the defendant first
offered evidence of good character or predisposition, the
prosecutor improperly put the defendant’s character at issue by
asking, "What does his demeanor on that stand tell you about
[the defendant]? Does he appear to be the type of person that
would be scared to death under the circumstances?"

Here, the prosecutor’s
statement addressed the defendant’s credibility, not his
character, as indicated by her statement just prior to the
disputed comment, that the jury were "entitled to assess
[the defendant’s] demeanor in determining whether or not you
believe he was scared to death of Tony Evans." Because the
defendant took the stand and claimed self-defense, his
credibility became a central issue in the case and could be
referred to in closing argument. Accordingly, there was no error.

c. Comment on
constitutional right. The defendant’s next contention is that
in closing argument the prosecutor improperly commented on his
constitutional right to travel when she encouraged jurors to
infer guilt from his presence at the crime scene by asking,
"[W]ould [the defendant], if he was so afraid of Tony Evans
and received all these threats, [have] stayed on the stairs in
front of [the crime scene] just before the shooting?" The
defendant’s claim lacks merit because the prosecutor merely made
a permissible inference from the evidence regarding the
defendant’s theory of self-defense. See Commonwealth v. Kozec,
399 Mass. at 516.

d. Burden-shifting
comment. Lastly, the defendant argues that the prosecutor
shifted the self-defense burden of proof by repeatedly stating
that an acquittal on a self-defense theory required jurors to
"find" certain facts. The defendant’s reliance on Connolly
v. Commonwealth, 377 Mass. 527, 533 (1979), is misplaced
since that case addressed an improper jury charge, not an
argument by trial counsel. Furthermore, the judge gave clear and
repeated instructions on the correct burden of proof, see Commonwealth
v. Giguere, 420 Mass. 226, 230-231 (1995), and instructed
the jury to disregard the attorneys’ statements about the law.
Thus, there was no error.

3. Prior bad act.
The defendant asserts that the judge improperly admitted evidence
of a prior bad act by allowing a witness to testify that the
defendant said, "I shot my own brother, so what the hell
[do] I care about [Evans]." It is well established that the
Commonwealth may introduce evidence of a defendant’s previous bad
acts not to show a propensity to commit the crime charged, but
for other relevant purposes. Commonwealth v. Otsuki,
411 Mass. 218, 236 (1991). Commonwealth v. Leonardi,
413 Mass. 757, 763 (1992). Commonwealth v. Fordham,
417 Mass. 10, 22 (1994). If the evidence is relevant to issues
other than bad character or criminal propensity, it is admissible
provided that its value is not outweighed by its unfair
prejudice. Ibid. The witness’s testimony here, taken as a
whole, recounted the defendant’s reaction to his moped being
stolen by Evans, and was relevant to defeat the defendant’s claim
of self-defense. That is, the statement was probative of his
motive for shooting Evans, which was anger, not fear.

4. Jury instructions.
The defendant challenges the judge’s supplemental instruction to
the jury regarding self-defense because it failed to caution the
jurors against using hindsight in evaluating self-defense. A jury
charge must be examined as a whole to assess its impact. See Commonwealth
v. Watkins, 425 Mass. 830, 840 (1997). It is assumed that
the jury understood and followed the judge’s instructions. Ibid.
Moreover, supplemental instructions do not require a judge to
repeat "the same thought at each turn." Ibid.,
quoting from Commonwealth v. Peters, 372 Mass. 319,
324 (1977).

Here, the instructions
repeatedly explained that a person may defend himself even if he
is under a mistaken belief that the other person is about to
attack him physically, provided the belief is reasonable in the
circumstances at that time.[2] Thus, given the
repetition and clarity of the instructions, a reasonable jury
would not have mistakenly concluded that they should use
hindsight in considering self-defense simply because the judge
omitted the word "hindsight" from the instructions. SeeCommonwealth v. Torres, 420 Mass. 479, 484 (1995)
(a judge need not give "instructions in any particular form
of words, so long as all necessary instructions are given in
adequate words").

Judgment affirmed.

————-NOTES————

[1]Bernice Hicks, the
victim’s cousin, testified about her conversation with the
defendant regarding the stolen moped as follows, "[The
defendant] said, [Evans] took my moped. And [the defendant] said,
[Evans] don’t know me. [Evans] fucked up. [The defendant] said,
Well, I want my moped back. [Evans] shouldn’t have tooken it from
me. I said, Well, I’ll go look for [Evans] and see, because [the
defendant] had said he was going to kill [Evans].

[2]The judge’s initial
instructions were as follows: "[t]hat is a reasonable person
in the defendant’s circumstances — and you have to take the circumstances
as they existed at that particular time — that in those
circumstances a reasonable person would reasonably believe that
he was immediately about to be attacked and he was in immediate
danger of being killed or seriously injured." The judge
again explained that a person may lawfully use self-defense to
defend himself only if the mistaken belief is "reasonable in
all of the circumstances of this particular incident."
The supplemental instruction stated that the belief must be
reasonable "in all of the circumstances of the facts of
the case." (Emphasis supplied.)

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